Citation Nr: 0412126
Decision Date: 05/10/04 Archive Date: 05/19/04
DOCKET NO. 02-17 178 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for residuals of injury
to the upper back/neck.
2. Entitlement to service connection for a bilateral
shoulder disorder.
3. Entitlement to service connection for a bilateral eye
disorder.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
K. Ehrman, Counsel
INTRODUCTION
The veteran had active duty from September 1972 to August
1974.
This matter comes before the Board of Veterans Appeals
(Board) on appeal from a July 2002 rating decision of the RO,
which denied the benefits sought on appeal.
This appeal is REMANDED to the RO via the Appeals Management
Center in Washington, DC. VA will notify the veteran if
further action is required on his part.
REMAND
Prior to the filing of the veteran's claims on appeal, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. It is
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002). Regulations implementing the VCAA
are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326
(2003).
The VCAA and the implementing regulations are applicable to
the issues on appeal and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. They also require VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
The record does not reflect that the RO has complied with the
notification requirements of the VCAA and its implementing
regulations. Moreover, it appears that VA records
potentially supportive of the claim have not been associated
with the claims folder.
Regarding the claims of service connection for neck and
shoulder disorders, the following development remains to be
completed. The October 25, 2001 private medical nexus
opinion of Dr. Ginther makes reference to a recent
examination of the veteran's neck and shoulders on October
22, 2001. The RO should ascertain whether any additional
report/clinical records are available from Dr. Ginther. The
Board further notes that in a July 2002 statement, the
veteran identifies pertinent private post-service medical
records which have not been requested or obtained.
Accordingly, the RO should request authorizations to obtain
copies of medical records from Dr. D. Hill and the private
hospital identified by the veteran, particularly records
dated during the 1970s and in or around August 1979.
Accordingly, this case is REMANDED to the RO for the
following:
1. The RO should contact the veteran and
his representative and provide written
notice of the provisions of VCAA which
are applicable to the claims on appeal.
The RO should specifically advise the
veteran as to what information and
medical or lay evidence is necessary to
substantiate his claims on appeal, with
notice as to what evidence, if any, the
veteran is expected to obtain and submit
on his own, and what evidence VA will
retrieve on its own. The VCAA notice
must be incompliance with Quartuccio v.
Principi, 16 Vet. App. 183 (2002) and
Charles v. Principi, 16 Vet. App. 370
(2002). The RO should also request the
veteran to submit any evidence in his
possession relevant to the issues on
appeal. The veteran should be provided
an adequate time in which to respond to
the VCAA notice.
2. The RO should also contact the
veteran and request that he identify the
names, addresses, and approximate dates
of treatment of VA and/or private care
providers who have treated him for back,
neck, shoulder and/or eye complaints. In
particular, the RO should attempt to
obtain authorizations for the release of
any and all medical records from Dr. D.
Hill, "Sameriton" Hospital and Dr.
Ginther. The RO should document efforts
to obtain copies of any additional
records identified by the veteran and not
already of record.
3. Upon the completion of the above, the
RO must then review the claims file and
ensure that any other notification and
development action required by the VCAA
and its implementing regulations is
completed, consistent with all governing
legal authority.
4. Thereafter, the RO should
readjudicate the claims on appeal based
on review of the entire evidentiary
record. If any benefit sought on appeal
is not granted to the veteran's
satisfaction, he and his representative
should be provided a supplemental
statement of the case, with an
opportunity to respond thereto.
The purposes of this REMAND are to assist the veteran, to
afford him due process of law, and to comply with the notice
provisions of the VCAA. By this REMAND, the Board intimates
no opinion as to the ultimate disposition of the appeal. No
action is required of the veteran unless he receives further
notice. He does, however, have the right to submit
additional evidence and argument on the matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board or by the United States Court of Appeals for
Veterans Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645,
4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.43 and
38.02.
_________________________________________________
J. M. Daley
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).